The EEOC claims that policies that assume dad cannot be the primary caregiver violate the law.

In 2013, Estee Lauder implemented a new parental leave policy, which allowed for six weeks of paid leave for moms and two weeks of paid leave for dads. The reasoning is that mom is the primary caregiver and dad is a backup. They did allow an exception in the case of a man who hired a surrogate--he would be allowed the six weeks of paid leave.

It's pretty easy to see that there is a clear gender difference here. Granted, there is always a gender difference in childbirth because mom has to do the physical work of getting the baby here, but there is a difference between a disability leave (you're legally considered disabled for a minimum of six weeks after a vaginal birth and eight weeks after a c-section) and leave for a "primary" caregiver.

In both of these companies, the policy neglects to take into consideration that not every family operates in exactly the same way. Some parents split childcare and responsibilities 50/50. In some, Mom takes the bulk of the work, and in others, Dad does. In lots of families, the "primary parent" changes as the family's needs change.

If you want to avoid being next on the EEOCs list, consider the following when drafting your parental leave policy.

Men and women can both be the primary parent. While you can certainly say only one parent can fill that role if both parents work for your company, you should otherwise take the employee's word for it.

Legally, you have to allow up to 12 weeks of unpaid leave for any parent to take care of new baby, a new foster child, or newly adopted older child. Don't ever assume that the dad will not be the one to take this leave that is guaranteed under FMLA. Again, if both parents work for you, you can limit this to 12 weeks total.

Double check with your attorney before implementing the policy. Employment law is complex and varies from state to state. It's always cheaper to pay an attorney before than it is to pay an attorney to defend you.